As I listen to the breathless reports pouring out of the Supreme Court about the oral arguments for and against Obamacare, I recall my own visit to the Supreme Court in October of 2009. Unlike the U.S. Senate, where senators give fiery speeches to an empty chamber, all nine Supreme Court Justices actually show up, complete with robes and everything. I was sitting just a few feet way from Justice Alito, and I had watched people argue a case that had something to do with probable cause and overturning a conviction, although it was very hard to figure out the specific details. Anthony Kennedy was a bit of a blowhard; Chief Justice Roberts made the most sense, and Ruth Bader Ginsburg looked and sounded precisely like Hans Moleman from The Simpsons.
In his defense, Justice Thomas has said repeatedly that he considers oral arguments to be a tremendous waste of time, and he’s probably right. I don’t think that by the time something winds its way to the Supreme Court that the justices are learning any new information when they ask their questions. It becomes an impressive display of verbal dexterity, but it probably doesn’t do much in terms of changing anyone’s mind. What seems shocking to anyone watching the current debate over the Patient Protection and Affordable Care Act is that Anthony Kennedy, the weather vane justice who votes whichever way the cool kids are voting, seems to be in agreement with the four conservatives this time, which means Obamacare may not survive long enough for a Republican to repeal it.
There are a number of political prognosticators who are attempting to read the tea leaves and determine what this does to the president’s reelection prospects, and, frankly, I’m not one of them. The reality is that nobody has a clue what this will do to his reelection chances. Passage of Obamacare triggered an overreaction on the part of conservatives and swept the Tea Party into power in 2010. Mitt Romney’s ascendency proves that the power of the hardcore zealots is waning. So will the death of Obamacare reenergize the Tea Party, or will it undermine their whole rationale for existing? I personally think it would defang the president in the eyes of the general electorate and make him more palatable to moderate voters. Without the pressing need to get a Republican in there and repeal it, the urgency of electing a conservative president becomes far less intense.
That said, I think it’s pretty sad that our national health care discussion, along with everything else, quickly dissolves into a partisan morass. Whether or not the law is upheld, it would be nice if people could step away from the horse race analysis and look at the bigger picture, which includes the following elements:
1. The health care status quo is unacceptable.
In their opposition to Obama’s overreach, Republicans have not offered any substantive alternatives and have instead become the de facto defenders of the health care status quo. Lost in the bickering is the fact that the status quo stinks. It’s unsustainably expensive, ridiculously bureaucratic, and too many people fall through the cracks. There are certain conservative solutions that need to be part of the mix – tort reform, primarily, in order to reduce obscene malpractice insurance costs – but both sides of the aisle have to acknowledge and address that there are fundamental structural problems with the current system, and it’s not enough just to oppose reform – one needs to offer something constructive in its place.
2. We already have universal health care in the United States.
Granted, it’s the most expensive, convoluted, and inefficient universal health care system in the industrialized world, but the fact remains that we don’t allow American citizens to die in the street for lack of health care. Emergency room and hospitals are required by law to treat all patients, regardless of their ability to pay. Opponents of the flawed Obama solution ignore the fact that the current system already has enormous hidden costs as insurance holders shell out for higher premiums to compensate for the costs of covering the indigent. In addition, there is no political will to create a system where health care becomes 100% “market-driven,” so that if you can’t afford it, you can’t get it. Consequently, if we’re going to provide universal health care, we ought to figure out how to provide it at a reasonable cost rather than pretend we’re not doing it.
3. It is impossible to get insurance companies to overlook pre-existing conditions without an insurance mandate.
Since the individual mandate is the bedrock of the case against Obamacare at the Supreme Court, conservatives who once championed such a thing as a viable alternative to a single-payer system have suddenly – and recently – decided that this is the most hideous aspect of the law, the death of freedom, the rise of Big Brother, yada yada yada. Now there is a legitimate argument as to whether or not this should be a federal responsibility, but there is no legitimate argument that maintains that an insurance pool can survive if people can wait until they get sick before they join it. Incidentally, the argument against the Obama mandate allows for the fact that states can step in provide this kind of regulation even if Washington can’t. This is why, even though both contain mandates, Mitt Romney’s plan in Massachusetts is constitutional and Barack Obama’s plan isn’t.
4. The Solution: Catastrophic Coverage and Health Savings Accounts
Insurance should cover catastrophes, not maintenance. Your car insurance will replace an engine and an auto body that are destroyed in a wreck, but it doesn’t reimburse you for gasoline and oil changes. Health insurance should follow the same model. In addition, tax incentives need to be shifted in order to separate medical benefits from the employer, and insurance companies need to be given the freedom to do business across state lines.
None of these reforms will fix the problem entirely, and if there were an easy way to do it, it would already be done. But as conservatives get excited about tearing down a bad law, they need to recognize that this marks the beginning, not the end. It’s time to start building something better in its place.